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O'Bannon trial witness makes case college players are athletes first

OAKLAND — The Ed O'Bannon antitrust lawsuit against the USA began its second week in court on Monday with former Vanderbilt football player Chase Garnham returning to the stand. Garnham is scheduled to be

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O'Bannon trial witness makes case college players are athletes first

Steve Berkowitz, USA TODAY Sports 10:41 p.m. EDT June 16, 2014

Former Vanderbilt football player Chase Garnham and Sathya Gosselin, one of the lawyers for the plaintiffs, arrive at U.S. District Court in Oakland on Monday.(Photo: Steve Berkowitz, USA TODAY Sports)

OAKLAND — A Drexel University sport management professor spent nearly 3½ hours testifying for the plaintiffs in the Ed O'Bannon class-action antitrust trial Monday, and lawyers for the NCAA spent almost as long objecting to nearly every assertion she made.

After getting overruled at virtually every turn by U.S. District Judge Claudia Wilken, an attorney for NCAA tried the next-best alternative — using cross-examination to question Ellen Staurowsky's qualifications for offering her testimony.

What might have been most telling, though, was what the NCAA largely didn't do — at least not on Monday.

For the most part, it did not question the facts upon which Staurowsky built her testimony.

She testified that the NCAA does not follow the mission it sets out in its own rulebook and that there are a half-dozen reasons Football Bowl Division football players and Division I men's basketball players — "student-athletes" in the NCAA's nomenclature — are athletes first and students second.

The NCAA took issue with Staurowsky basing some of her contentions on reporting by news organizations, including USA TODAY Sports.

"Not to say that there's anything wrong with reading periodicals and articles and examining those articles and incorporating them into your opinions and your thought," the NCAA's chief legal officer, Donald Remy, said. "But when you're offering an expert opinion, though, that expert opinion ordinarily is based upon analyses and research and data that goes beyond what we've seen here today."

Seth Rosenthal, the member of the plaintffs' legal team who led Staurowsky's testimony, noted that the NCAA had been rebuffed by Wilken in a pretrial bid to prevent Staurowsky from testifying, and he said: "Hey, look, she's been doing this for 20 years. It's not as though she is picking a blog entry here and some random post on Twitter there and forming an opinion. This is what she does for a living. She studies, she teaches, she writes about college sports. That's her expertise. … The judge has already accepted her as an expert in the administration of college sport, and I suppose the NCAA is trying to do this to make a record for an appeal."

That was not the case with the NCAA's approach toward recent Vanderbilt football player Chase Garnham, who had begun his direct testimony Friday and completed it Monday. He faced a cross-examination in which he faced stiff questioning based on, among other items, his pretrial deposition, his Twitter postings, and a side-by-side comparison of his purported video-game avatar against that of a Stanford player.

All of this was tied to two of the four justifications that the NCAA has offered for limiting athletes to a scholarship basically comprising tuition, room, board, books and mandatory fees:

—The limits further the integration of athletics and education.

—The limits increase consumer choice and demand because they result in amateurism that makes Bowl Subdivision Football and Division I men's basketball distinct from pro football and basketball and, therefore, more appealing to fans than they would be if the players were paid for the use of their names, images and likenesses in live television broadcasts, rebroadcasts of games, video games and other forms of marketing.

The plaintiffs — led by O'Bannon, a former UCLA basketball player — are seeking an injunction that basically would prohibit the NCAA from limiting what football and men's basketball players can receive.

Garnham was the third named plaintiff to testify, following appearances last week by O'Bannon and former Alabama football player Tyrone Prothro. As with O'Bannon and Prothro, Garnham testified about various issues he faced as a major-college football player. He said that he took pain medication administered by the Vanderbilt training staff before almost every game of his junior and senior seasons because of injuries. He said he saw his avatar in a video game and had no doubt the avatar was based on him.

He said that he was joined in his major — human and organizational development — by about half of the players in his class year on the team. (Based on information in Vanderbilt's 2013 football media guide, USA TODAY Sports counted 23 players in that major among the 61 whose biographical sketches listed a major.) He also recounted his dispute with athletics department officials, including athletics director David Williams, before his senior season over whether he had to sign a wide-ranging name, image and likeness rights waiver in order to play.

On cross-examination, NCAA lawyer Carolyn Luedtke, elicited from Garnham that Garnham had been injured frequently in high school and had kept playing football. She also showed images of Garnham's video game avatar and an avatar of a Stanford player, and Garnham testified that both had the same face.

She also noted — with Garnham's assent — that human and organizational development was a popular major among all Vanderbilt students, and that he'd had the opportunity to consult with a lawyer concerning the waiver. And as response to Garnham testifying that he was "an athlete first, a student second," she displayed Tweets in which Garnham talked about spending large amounts of time watching popular TV shows. She concluded by getting Garnham to agree that had received a scholarship worth more than $50,000 a year and had graduated without student debt.

Staurowsky's testimony began with Rosenthal introducing two passages from rules in the NCAA Division I Manual:

The first, from a section titled "Fundamental Policy," says "a basic purpose" of the NCAA is to "maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports."

The second, from a section titled "The Principle of Amateurism," says, in part: "Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises."

With that as a backdrop, and over the NCAA's objections, Staurowsky testified about the hundreds of millions of dollars in TV money received annually by the NCAA's five elite conferences — the Atlantic Coast, Big Ten, Big 12, Pacific-12 and Southeastern — and how those deals drive the scheduling of games and schools' willingness in the mid-2000s to add a 12th game to the regular-season schedule.

She then cited and detailed, amid the NCAA's objections, six reasons that she believes football and men's basketball players are athletes first:

—Time demands on the athletes, for which she cited cited NCAA survey data.

—The schools' prioritization of athletics, for which she cited NCAA survey data, including one survey in which 16% of FBS football players and 15% of Division I men's basketball players said they'd probably or definitely choose their current major if they were not athletes.

—The manner in which scholarships are handled, including a Chronicle of Higher Education survey that showed few schools are widely taking advantage of an NCAA rules change that allows them to offer multiyear scholarships.

—Admissions standards, including an Atlanta Journal-Constitution report on the hundreds of points of differences in the standardized test scores among football and men's basketball players at elite-conference schools and those of their classmates.

—Graduation rates that, by both federal and NCAA metrics, are lower for football and men's basketball players than for overall student populations and overall athlete populations.

—Clustering in majors by football and men's basketball players. Staurowsky in 2008, while teaching at Ithaca College, led a group of her students in assisting USA TODAY Sports with gathering data for a report on the degree to which men's and women's major-college athletes cluster in majors at rates significantly disproportionate to students as a whole at their respective schools.

Asked what part of Staurowsky's testimony was factually incorrect, the NCAA's Remy replied: "Factually incorrect? I'd have to go back and read the transcript to let you know that."

But he also said the NCAA, as soon as Tuesday, will present witnesses who "can further talk about issues of the integration of the student-athlete with the academics of the institution" and those witnesses, he said in one last jab at Staurowsky's background, will be people "on campus and in conferences who have had experiences at multiple campuses in athletics administration."